Patton v. State of North Carolina, Civ. No. 2397.

• Citation: 256 F. Supp. 225
• Decision Date: 20 July 1966
• Docket Number: Civ. No. 2397.
• Court: United States District Courts. 4th Circuit. Western District of North Carolina
• Parties: Eddie W. PATTON, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

256 F. Supp. 225

Eddie W. PATTON, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

Civ. No. 2397.

United States District Court W. D. North Carolina, Asheville Division.

Heard April 19, 1966.

Decided July 20, 1966.

William W. Van Alstyne, Durham, N. C., for petitioner.

Wade Bruton, Atty. Gen. of North Carolina, and Theodore C. Brown, Jr., Staff Atty., Raleigh, N. C., for respondent.

MEMORANDUM OF DECISION

CRAVEN, Circuit Judge.^*

By establishing that he was unconstitutionally imprisoned, Eddie Patton won a new trial and, ironically, lost more of his liberty.

Patton was arrested on June 10, 1960, and has been imprisoned ever since. For lack of money to post bond, he stayed in jail in Bladen County from June 10, 1960, until his trial on October 26, 1960, when, without the assistance of counsel, he tendered a plea of nolo contendere to the felony of armed robbery. He was sentenced to serve a term of twenty years imprisonment in the State's prison and did not appeal.

Then came Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In April of 1964 Patton filed in the Bladen County Superior Court an application for a post-conviction hearing. His petition was denied, but, subsequently, the Supreme Court of North Carolina, in an order dated September 2, 1964, ordered a plenary hearing for Patton. On November 17, 1964, the Superior Court of Bladen County found as a fact that Eddie Patton, at the October 1960 term, had requested the court to appoint counsel to represent him, and that the court had denied such request, and that at the time of the request Patton was an indigent person unable to employ counsel, and that he had not waived his right to counsel. As required by Gideon, the court concluded that Eddie Patton had been denied his constitutional rights "and that his sentence and the term for which he is now serving confinement is unlawful and should be set aside and declared null and void, and the said Eddie Walter Patton awarded a new trial." The North Carolina Prison Department surrendered Patton to the Sheriff of Bladen County. Bond was set in the amount of $12,000.00, and, for lack of it, Patton was confined in the Bladen County jail from about November 17, 1964, until about February 17, 1965, awaiting his second trial. Represented this time by counsel, he entered a plea of not guilty, but was convicted.

In February 1965, Patton received the same, identical sentence, i. e., twenty years imprisonment, that he had received in October of 1960. The sentence and the trial judge's rationale of it appears in the transcript as follows:

"COURT: Before I announce punishment, I will take into consideration the fact that he has served four years, or nearly five years."

"COURT: I am going to give you—I would give you five more years than what I am giving you, but I am allowing you credit for the time that you have served. Judgment of the court is that the defendant be imprisoned in the State's prison for a term of 20 years, to be assigned to do labor as provided by law. He is in your custody, sheriff."

If Patton had not sought a new trial, he would have become eligible for parole in October 1965.¹ Under the second sentence, he will become eligible for parole in February 1970, i. e., some four years and four months after the original eligibility date. If ineligibility for parole be assumed and earned time factors ignored, he would have completed the first sentence in October 1980; whereas, on the same assumptions, he will complete the second sentence in February 1985.

As a result of having sought and obtained a new trial, Eddie Patton is worse off than he was before. It matters not to him whether what happened be verbalized as increased punishment or denial of credit for time served. Whether unjust or not, such a result is said to be lawful. The syllogism runs somewhat as follows:

(1) Patton did not have to seek a new trial and might well have been content with the sentence imposed upon him at the first trial in violation of his constitutional right to have the assistance of counsel.

(2) Since he chose to insist upon a new trial, if it turns out harmfully to him, it is his own fault and he should not be heard to complain. "A new trial * * * carries hazards, as well as benefits." State v. Merritt, 264 N.C. 716, 142 S.E.2d 687, at p. 691 (1965).

(3) "(I)n seeking and obtaining a new trial (Patton) must be deemed to have consented to a wiping out of all the consequences of the first trial." State v. White, 262 N.C. 52, 136 S.E.2d 205 at 208 (1964).

(4) "(H)e is not entitled as a matter of law to credit against the second sentence for time served under the original sentence", Ibid., and is simply fortunate that the second trial judge gave him such credit—if he did.

(5) Since the maximum punishment for the offense is thirty years, Patton is fortunate that he received only twenty years at the second trial—even though such leniency results in his serving some four years and four months longer than he would have served. "The mere fact that different judges imposed different punishment does not invalidate the sentence imposed at the second trial", and the second judge may lawfully increase the sentence. State v. Williams, 261 N.C. 172, 134 S.E.2d 163 at 165 (1964); (partially overruled in State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, but not so as to withdraw the application of the quoted statement to Patton.)

To the foregoing, Eddie Patton interposes the Fourteenth Amendment to the Constitution of the United States and insists that:

(a) He is entitled to credit for time served in prison under the first sentence—which credit has been effectively denied him. He contends that the trial judge's remarks (quoted hereinabove) about taking the time served into account kept the promise to the ear and broke it to the heart.

(b) He may not be sentenced to a longer term of imprisonment at the second trial than he received at the first trial, i. e., that the sentence at the first trial is a punishment ceiling.

(c) The second sentence of imprisonment was unconstitutionally motivated by religious bias of the presiding judge contrary to the First Amendment of the United States Constitution as made applicable to the states through the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

May this court properly consider these contentions?

JURISDICTION

Patton's petition for writ of habeas corpus was filed in this court on the 26th day of July, 1965, on a simple form used for processing the numerous applications received. Without benefit of counsel at that time, he alleged that he was unconstitutionally confined for the reasons mentioned in the order² summarily dismissing the application for the writ.

Patton appealed to the Court of Appeals for the Fourth Circuit, and his present contentions then became apparent for the first time. After consultation between the district judge and Chief Judge Haynsworth of the Court of Appeals for the Fourth Circuit, the case was remanded for further consideration. With the assistance of able counsel, the petition was amended to present the important contentions previously stated.

The power of a federal district court to consider a state prisoner's petition for writ of habeas corpus and to review the constitutionality of his state trial is conferred by Title 28 U.S.C.A. Section 2254. In conferring that jurisdiction upon the federal courts, the Congress has specifically provided that this court shall not grant the writ unless the state prisoner (1) has exhausted remedies available in the courts of the state, or (2) there is no available state corrective process, or (3) there are circumstances rendering the state process ineffective to protect the rights of the prisoner.

North Carolina has a wholly adequate and enlightened procedure under which state prisoners may obtain from state courts a review of the constitutionality of their trial and imprisonment. N.C. G.S. Sections 15-217 to 15-222. Patton has not sought review of his second trial and sentence pursuant to the North Carolina Post-Conviction Hearing Act. Jurisdiction, if it exists, therefore depends upon "the existence of circumstances rendering such process ineffective." 28 U.S.C.A. Section 2254.

These circumstances exist by reason of prior decisions of the Supreme Court of North Carolina foreclosing in the state courts Patton's contentions that (a) he is entitled to credit for time served, and (b) that he cannot be more harshly punished at a second trial. State v. Williams, 261 N.C. 172, 134 S.E.2d 163 (1964); State v. Anderson, 262 N.C. 491, 137 S.E.2d 823 (1964); State v. White, 262 N.C. 52, 136 S.E.2d 205 (1964); State v. Slade, 264 N.C. 70, 140 S.E.2d 723 (1965).

Recently the North Carolina Supreme Court, in State v. Weaver, 264 N.C. 681, 142 S.E.2d 633 (1965), reexamined Williams, White, Anderson, and Slade. Mr. Justice Bobbitt, speaking for the court, said: "Decision on this appeal does not necessitate reconsideration of the decision in White as applied to the factual situation considered therein or to the later decisions based thereon, to wit, Anderson and Slade." Weaver, supra, 142 S.E.2d at 637. Thus, those decisions were left standing. Williams, which had held flatly that the "contention that the judge was compelled to allow him credit for the period spent in prison before a valid trial was had is also without merit", Id., 134 S.E.2d at 165, was modified and overruled only to this extent: if the subsequent sentence plus the time already served under the invalid sentence exceed the statutory maximum provided for the offense, then the prisoner must be given credit for time served to the extent of the excess so that total time served will not be longer than the statutory maximum. Since Patton, under his present sentence, will serve not quite twenty-five years and the statutory maximum sentence is thirty years, Weaver avails him nothing, and Williams controls as to him.

At the hearing in this...